United States v. Alfonzo Johnson ( 2018 )

NOT FOR PUBLICATION
File Name: 18a0492n.06
Case No. 18-1043
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 02, 2018
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) On Appeal from the United States
v. ) District Court for the Western
) District of Michigan
ALFONZO DEWAYNE JOHNSON, )
)
Defendant-Appellant. )
)
_________________________________/
Before: GUY, WHITE, and STRANCH, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Alfonzo Johnson pleaded guilty to
conspiring to distribute at least 50 grams of methamphetamines and 5 kilograms of cocaine,
in violation of 21 U.S.C. §§ 846, 841(a)(1). The district court sentenced him to 360 months
of imprisonment. On appeal, Johnson challenges the court’s application of a two-point
enhancement for importing the methamphetamines. For the reasons below, we affirm.
I.
For several years, Alfonzo Johnson trafficked heroin, cocaine, and
methamphetamines in Muskegon, Michigan. Suppliers trucked the drugs up to Muskegon
Case No. 18-1043, United States v. Johnson
in a specially modified Honda Ridgeline, where Johnson would receive them and then
distribute them to others for resale. Johnson had several Muskegon associates in the
endeavor, including Devanda Montgomery (his girlfriend), Jamaico Lockhart (his half-
brother), and James Kitchen (his cousin), along with Alvin Rone and Demarco Knox. Each
played one or more roles in paying for the drugs, transporting and storing them, or
purchasing them from Johnson to then resell.
Johnson pleaded guilty pursuant to a plea agreement and his sole argument on
appeal turns on where the methamphetamines came from. Under the United States
Sentencing Guidelines, a defendant receives a two-point offense-level enhancement if the
offense “involved the importation” of methamphetamines “that the defendant knew were
imported unlawfully[.]” USSG § 2D1.1(b)(5). Johnson admitted that he conspired to
distribute methamphetamines, but during sentencing he objected to the enhancement on
the grounds that there was no evidence that they came from Mexico, let alone that he was
aware they did. The district court overruled his objection and applied the two-point
enhancement, thus leading to this appeal.
II.
Johnson faces a demanding standard. At the sentencing stage, the government bore
the burden of proving factors supporting a sentencing enhancement, but needed to prove
them only by a preponderance of the evidence. See United States v. Aleo, 681 F.3d 290,
298 (6th Cir. 2012). And when this court reviews a district court’s application of the
Sentencing Guidelines, it must accept the district court’s findings of fact unless they are
clearly erroneous, treating with deference the court’s applications of the Guidelines to the
Case No. 18-1043, United States v. Johnson
facts. United States v. Simmerman, 850 F.3d 829, 832 (6th Cir. 2017) (citing 18 U.S.C.
§ 3742(e) and Buford v. United States, 532 U.S. 59, 63–66 (2001)).
Here, the evidence supported the district court’s finding that the methamphetamines
were imported and Johnson knew they were. To begin, during the trial of codefendant
James Kitchen, an expert testified that methamphetamines are indeed smuggled from
Mexico to the United States. Johnson admitted that he worked with a contact in Mexico,
though he contended the contact was merely a “broker” who told him “who to see
throughout the country to acquire the drugs[.]” Still, he admitted taking trips to Mexico
with Montgomery, each time passing through Arizona, and notably, the truck that routinely
delivered methamphetamines to Johnson had an Arizona license plate. On the way back
from one of the trips, Johnson explicitly told a confidential informant that he and
Montgomery had been in Mexico visiting narcotics contacts and offered to sell the
informant methamphetamines at a particular price. Money was sent to Mexico too:
Johnson admitted to personally wiring money to his drug suppliers in Mexico and he
frequently directed the codefendants to do likewise. Finally, when law enforcement
officers discovered 26 grams of methamphetamines in Lockhart’s home, Lockhart told
them that Johnson was his source and that Johnson obtained the drug from Mexico. Rone
also told law enforcement officers that Johnson obtained methamphetamine from Mexico.
In other words, Johnson (1) regularly sent thousands of dollars to Mexico,
(2) worked with people there to acquire a substance (methamphetamine) that often
originates in Mexico and which multiple confederates confirmed actually came from
Mexico, and (3) received repeated deliveries by a truck bearing the license plate of a border
Case No. 18-1043, United States v. Johnson
state to Mexico. Given the foregoing, the district court did not clearly err by finding that,
more likely than not, the methamphetamines were imported and Johnson knew it.
III.
Even if the district court had erred, the sentence it imposed would not warrant
remanding. Although mistakes in guideline calculations may require this court to remand
the case for resentencing, no remand is required if the error is harmless. United States v.
Anderson, 526 F.3d 319, 324 (6th Cir. 2008). Error is harmless if we are certain that it
“did not affect the district court’s selection of the sentence imposed.” United States v.
Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (quoting Williams v. United States, 503 U.S.
193, 203 (1992)).
Any error would be harmless here. Johnson conceded that his base offense level
was 38 and admitted the correctness of a four-point enhancement due to his role as a leader
or organizer. Given his criminal history, he faced an advisory guidelines range of 360
months to life even without the two-point enhancement for importing methamphetamines.
USSG ch. 5, pt. A (Sentencing Table). Although the district court applied the
enhancement, it sentenced him to 360 months of imprisonment. Simply put, Johnson
already received a bottom-of-the-range sentence based on the offense level he asks for on
appeal.
We AFFIRM.